CHAPTER SEVEN INTERACTION AND OVERLAP: OTHER FORMS OF REPRESENTATION
7.1 The study explored the interaction between the Named Person, IAW and solicitor. Whilst there was potential for overlap, there appeared to be very little in practice. This chapter will first look at the representation provided by solicitors and IAW and nature of their contact with Named Persons. It will then look at their interaction as a whole.
Legal representation
7.2 The three solicitors interviewed were also Tribunal convenors, which gave them the opportunity of observing the performance of other solicitors.
Role
7.3 All participants had a good understanding of the role as described below. This was unsurprising given that the right of patients to legal representation had been established for some years prior to the MHSA.
7.4 The role "is to act for the patient and to represent the patient's legal interests in whatever the patient wants out of the process, whether they want to oppose the application or they're quite happy with an order being granted but they don't want a hospital order, they want a community order, that type of thing." solicitor 1
7.5 Solicitors were observed to take up differing styles by the range of participants. Whilst some were skilled at developing an appropriate style for a Tribunal setting, others were seen to take on an adversarial or excessively legalistic approach. For example, one convenor, and also solicitor, commented:
"I've found some of the contributions from lawyers to be wholly unhelpful. Some of them think they're in LA Law or something, that they can score points. And I really find that very unhelpful…Because I don't find that a tribunal with mentally ill people is a courtroom. It's a tribunal, it's a legal place but not as formal as a courtroom." Tribunal member 6
7.6 One consequence of this adversarial role, from the viewpoint of some MHOs, was that hearings were delayed or adjourned unnecessarily by solicitors to allow time for consultation with their clients or to get a second medical opinion. MHOs felt that where a person was clearly very ill and the tests would be met, such postponements were not in the patient's best interests. One Tribunal member countered this, saying that in her experience, she never witnessed an adjournment being made unnecessarily.
7.7 Some MHOs and Tribunal members did query whether a larger fee, rather than the aspects of the legal case itself, motivated some of the solicitors who took this excessively legalistic approach.
7.8 The solicitors interviewed commented that the MHSA had extended their role due to the nature of the orders being given and recorded matters. This was seen as a progressive step which afforded greater protection for the patient.
7.9 The IAW for young people commented that all the solicitors they had come across had adopted a very appropriate style and established good relationships with the young people themselves. Most of the solicitors they used came from one agency that had expertise in mental health.
Availability
7.10 The solicitors, MHOs and IAWs all commented on the patchy availability of solicitors across Scotland. Whilst the central belt was seen as having a small but reliable number of solicitors with an expertise in mental health law, other regions were struggling.
7.11 IAW were often the people phoning round to obtain a solicitor for a patient. This could be time consuming and led to occasions when a solicitor was only secured at the last minute
"The Scottish Law Society has screeds and screeds that say that they do mental health work, but when you actually 'phone to get one, they won't represent. So they are actually few and far between and sometimes we get people from (a place an hour's drive away) for clients."IAW 2
7.12 Another aspect of availability was the short notice of Tribunal hearings which meant that some solicitors were already booked in for court work. This could account for some of requests for adjournments noted above.
Standard
7.13 Tribunal members felt that the quality of legal representation was variable. Whilst this was hard to quantify, one Tribunal member quoted 50% as being excellent, particularly in their cross-examination of RMOs and MHOs. The solicitors interviewed, in their role as legal representatives, also stated that the standard was variable
"I think the standard of legal representation is very, very patchy and some of it is very good and some of it's really pretty poor to be honest. Some of the representation isn't of a great quality and some people I think are just doing it as an add on to criminal defence work and what have you, and really don't have a grounding in the law and are just picking it up as the periphery of other bits of work that they do." solicitor 1
7.14 Tribunal members and MHOs also commented that those representing patients often seemed very junior, with a less than thorough grasp of mental health.
Interaction with Named Person
7.15 Named Persons have their own right to representation, though solicitors observed that this seldom happened. When it did occur it was most likely that the Named Person was opposing an application for a CTO. Occasionally a Named Person may approach the solicitor after the order had been granted to ask about a something that occurred in the hearing or after as part of the treatment. Unless the patient themselves was also wanting to take action then the Named Persons had to be advised to gain their own legal representation.
7.16 Solicitors will generally approach the Named Person, when they are asked to represent someone, in order to gain their views. Where both the patient and Named Person are opposing an order, then the Named Person is seen as a support to the solicitor's case. The solicitor might then ask questions of the Named Person in the hearing in order to make sure his/her view was heard. Where a Named Person's view is different, then the solicitor will have no more contact with them. The solicitors in this study described something akin to maintaining a respectful distance toward the Named Person at hearings, mindful of the stress of the situation for both Named Person and patient.
7.17 Two Named Persons spoke positively about the role the solicitor played for their friend/relative and demonstrated an understanding of the differences between them
"None (contact) with legal representative….But that is obviously for the reason that although I'm her Named Person, I might not necessarily always agree with her decisions. When detentions come about, I have to think about her safety first and decide." Named Person 1
Independent Advocacy Workers
7.18 In comparison to solicitors, the role of the IAW was created by the MHSA, though advocacy as a more general role was well established. One solicitor described how they held meetings early on to clarify route of referral, and how they might work alongside each other whilst maintaining defined boundaries. Training was also provided to assist advocacy projects in their new role.
Role
7.19 Whilst described in the simplest terms as helping a person to express their own views, the role of the advocacy is time-consuming and involved in order to get a person to stage where they can make an informed decision.
"We would look at, you know, are they under compulsory just now, if they wanted to appeal against it just now, if not did they want to wait until they proceed to a Compulsory Treatment Order, and then if that's the case they would sit with somebody who would talk them through the Tribunal process. We would explain, what each persons role may be, we would explain that the people have the right to ask for some people not to be in all the time, we would just take them through the whole process and we would ask them, you know, 'What is it that you are wanting from this tribunal? We would clarify the client's position."IAW 1
7.20 IAWs were viewed positively by the majority of participants. Tribunal members commented that IAWs often had a rapport with the patient which other representatives did not have.
7.21 An advocacy worker provides an example of this type of rapport.
"Quite often if someone has said an off the cuff remark previously a patient may think, oh well that's means I'm going to be out today and I've got my suitcase packed back at the ward and I'll be off home. And when you understand that that's the thinking that the patient has on that day sometimes it is useful to ask kind of tactful questions of the solicitor that the patient might not be asking. "How do you think things are going to go today? How does the independent report look? Is it favourable for the patient?" And just get the discussion rolling."IAW 3
7.22 One Named Person particularly wished to have her voice heard about IAWs.
"I think advocates have a very strong place, especially specifically for people with mental health problems. I think that's a really important service and should be highlighted." Named Person 1.
7.23 Solicitors commented that initially some advocacy workers over stepped their role in expressing the patient's view and Tribunal members had contributed to this by asking the IAW for their view, especially when the patient was not there. Currently IAWs were seen as being much clearer about their role within and outside the Tribunal hearing.
"I think most advocates understand what their role is. I think it's good for patients, they feel as though they've got somebody to turn to. Even when they've got legal representation the advocate is quite useful and I think that's working reasonably well. "solicitor 1
7.24 Two IAWs felt that their name did not aid clarity. People could confuse them with legal advocates and wonder why 2 legal people were necessary. Also some people did not see the difference between the role of the IAW and solicitor.
Availability
7.25 Two of the five IAWs stated their project was able to meet all their work demands. The other three, to varying degrees, felt they had prioritised the Tribunal work and put other work on hold.
"one of the problems we've had with the new Act is the workload that it's brought with it. Certainly myself, this week alone I've been to five tribunals in four days, which is very time consuming and the paperwork afterwards and getting to see the client afterwards and explaining the outcome if they have or haven't been there."IAW 3
Standard
7.26 The standard of skill in IAW compared favourably to solicitors. The majority of Tribunal members described their contributions as: 'Very useful, indeed…usually excellent', 'hugely helpful', 'certainly more useful, in my experience, than Named Persons', 'an enormous help', 'uniformly helpful…stunningly successful'. A few Tribunal members described the quality of advocates' input as 'variable' and in particular felt that advocates often remained silent until invited to speak. This might also be an example of confusion about the role of the IAW rather than their performance, as noted above.
7.27 The few other criticisms were around examples where the patient was incapable of expressing their views (as with dementia). A few MHOs thought that in this instance the IAW was making their own interpretations of the person's needs. They felt this could lead to potential conflict with the MHO role.
7.28 Allied to this were concerns about how much info MHO should share with an IAW. If they are only there to represent client's views then their source of knowledge should be from the client and not others. It was acknowledged that this view may differ between MHOs and the settings they worked in.
Interaction with Named Person
7.29 IAW took the same approach as solicitors towards Named Persons and therefore their contact varied, based on whether the person and the Named Person shared the same views about the order or application.
7.30 IAW workers commented that often patients would say to them 'will you phone so and so [who ended up as the Named Person] and tell them what is happening?' Also it had been known that patients came to IAW because the Named Person had not received the paperwork and they were concerned about that. The IAW for young people observed that was probably more interaction between them and Named Person than with adults, due to the fact that most were parents. This suggests that IAW may well have more informal contact with Named Persons.
Overlapping roles?
7.31 The professionals and workers in this sample perceived the potential for overlap but this is not happening in practice. In particular solicitors and IAW demonstrated this.
"I mean to some extent it's (advocacy) a slight distance from the solicitor. I mean I can certainly talk to solicitors. Sometimes the solicitors are actually engaged by the client for a separate issue within the same tribunal….. It tends to be the solicitor that we give over to because they… apart from having more legal knowledge they also can… they're not bound quite so much by the client's instructions I find. They can argue a case with a bit more discretion."IAW 4
7.32 What had occurred very occasionally was that an individual overstepped their role.
"I think the tribunal frequently has greater difficulty in understanding the boundaries. I don't think, for example, that it's appropriate for the tribunal to ask an advocacy worker to offer an opinion on the application, because that's really not what they're there for. Or to ask them to give evidence, which is quite bizarre and which I've even seen done whilst the patient is sitting there. But we haven't had any difficulties, really, for quite some time . "solicitor 2
7.33 Another aspect that struck the authors at the beginning of this study was the potential at Tribunal hearings to have three different people alongside the patient: Named Person, IAW and solicitor. Again, whilst to the outsider this might seem like too many cooks, the study does not point to this being the case. Not one participant group seemed concerned about this aspect of the MSHA.
"So what the panel usually does is they go around the table, usually the patient's solicitor would say at the very beginning what they were looking for and what the patient's views is, and they would go over all the legal tests. The advocacy worker would express the patient's view and the Named Person would express their own view. So it really does not get complicated." Tribunal clerk 2
The use of advance statements
7.34 Advance statements can be seen as a form of patient representation. The participants as a whole perceived them to be rarely used. One IAW said they now saw a "steady trickle" but that it tended not to be from those who were patients currently under the MHSA. Service user 2 is an example of someone who has not been in hospital for a few years, though receives ongoing support from a range of mental health services. He has written an advance statement, with the help of an IAW, because the nature of his illness means he may continue to have periodic spells of hospital treatment in the future. He sees the advance statements as giving him a stronger voice should that happen.
7.35 Two of the three nominated Named Persons knew that their friend/relative had drafted a statement. Service user 2 would soon have both in place. This would suggest that those who have a nominated Named Person are more likely to have an AS also.
7.36 Solicitors and Tribunal members often praised MHOs and IAWs for their promotion of advance statements when commenting on their important role in raising awareness about the nominating Named Persons. IAW and their projects had a much clearer role in ongoing promotion of advance statements as described below.
" Certainly I try to do advocacy awareness talks and discuss advance statements at day centres, where people can be… even when they're not engaging in other services. But there's always that problem of people who disengage when they're out of hospital and aren't involved in any services, how you promote advance statements within them? But quite often you find the ones who disengage when they're out of hospital are quite quickly back round in hospital again and you'll have that relationship again once they're back in hospital." IAW 3
Summary and conclusions
7.37 Whilst there was potential for overlap, there was very little in practice, and participants demonstrated an understanding of the differences between the roles.
7.38 Solicitors reported that their role could now extend beyond applications and appeals due to the introduction of recorded matters and conditions of excessive security. This was seen by solicitors as a progressive step which afforded greater protection for the patient. Solicitors were observed by the range of participants to take up differing styles. Whilst some were skilled at developing an appropriate style for a Tribunal setting, others were seen to take on an adversarial approach, and to have a limited understanding of this specialised area of law. There was a patchy availability of solicitors across Scotland. Finding a solicitor could be time-consuming and led to occasions when a solicitor was only secured at the last minute. Named Persons have their own right to representation but solicitors observed that this seldom happened. Solicitors' interaction with Named Persons varies depending on whether the patient and Named Person share the same views.
7.39 The role of the IAW is time-consuming and involved in order to get a person to a stage where they can make an informed decision. IAWs were viewed positively by the majority of participants. Tribunal members commented that IAWs often had a rapport with the patient which other representatives did not have. Challenges lay with the confusing title (too similar to the legal title of advocate) and where the patient lacked capacity. Some independent advocacy services had to prioritise the Tribunal work and put other work on hold. IAWs took the same approach as solicitors towards Named Persons and, therefore, their contact varied based on whether the person and the Named Person shared the same views about the order or application. However IAWs were often asked by patients to 'phone "so and so" (who ended up as the Named Person) and tell them what was happening. This suggests that IAW may well have more informal contact with Named Persons.
7.40 Advance statements can be seen as a form of patient representation. The participants as a whole perceived them to be rarely used. IAW and their projects had a much clearer role in ongoing promotion of advance statements but found similar challenges as with appointing Named Persons: people, once well, did not wish to revisit what could be difficult events in order to assess whether they would use them in the future.